Supreme Court of Canada Appointment Process

The Supreme Court of Canada is this country’s highest court, and is the final authority for all legal disputes, settling matters between individuals, organizations, and governments alike. Moreover, the Court is emerging as a forum for policy debate, due in large part to its powers to interpret important constitutional documents, such as the Canadian Charter of Rights and Freedoms. This, in turn, raises important questions regarding the manner in which judges are appointed to this politically powerful and influential court. This article introduces the Supreme Court's appointment process. In particular, it discusses which political actors have the power to appoint the Court's justices, the process by which selections are made, as well as current debates on whether the process should be reformed.

Issues & recommendation for changing the process

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Power to Appoint the Supreme Court of Canada

The power to appoint Supreme Court justices is held exclusively by the executive branch of the federal government, in particular, the Governor General and the Prime Minister.

Governor General's Power to Appoint

Under Canada's Constitution, the power to appoint justices to the Supreme Court is held by the Governor General of Canada, the Monarch's federal representative. The Governor General makes such appointments based on the advice of the Queen's Privy Council for Canada. In practice, however, only the current federal Cabinet, which is a subcommittee of the Privy Council, actually advises the Governor General on Supreme Court appointments. This is usually accomplished through consultation between the Governor General and the sitting Prime Minister.

Prime Minister's Power to Recommend

While the Governor General holds the legal power to appoint Supreme Court justices, the choice of who will be appointed is actually done by the federal Prime Minister and his/her Cabinet. This is due to a constitutional convention (unwritten constitutional practice developed over time) in which the Governor General does not use any discretion in exercising his/her power of appointment. Instead, it is regular practice for the Governor General to simply act on whatever recommendation is put forth by the elected federal Cabinet.

Moreover, the Prime Minister has the final say on which candidate will be recommended to the Governor General. This is due to the power held by the Prime Minister within Cabinet, and his/her ability to dominate Cabinet decision-making. If it were the case that the Prime Minister supported one candidate, while other Cabinet Ministers supported another, the Prime Minister is able to carry the day by exercising his/her powers over Cabinet membership (it is open to the Prime Minister to ask an opposing Minister to resign and then find a replacement who will support his/her decision).

Parliament & the Provinces

The rest of Parliament, as well as the provinces, have no formal authority in appointing Supreme Court justices. The Prime Minister is not required to hold a vote in the House of Commons or the Senate on an appointment. Moreover, the Prime Minister is not obligated to consult with provincial/territorial leaders or legislatures when determining who should be recommended.

This, however, is not to suggest that the rest of Parliament and the provinces cannot and will not have a role to play. There is nothing in the Constitution prohibiting the Prime Minister from consulting Parliament or the provinces and territories when making his/her choice. In recent years, Prime Ministers have initiated some limited parliamentary participation in the appointment process (see below). However, at the end of the day, the Prime Minister may choose whomever he/she prefers, regardless of whether other parliamentarians and/or the provinces/territories agree.

Process of Supreme Court of Canada Appointments

Rules & procedures for appointing Supreme Court justices

Eligibility & Representation

In choosing an appointment to the Supreme Court, the Prime Minister must observe several rules, which are set out in the Supreme Court Act. Firstly, the Prime Minister may only appoint a person with specific professional experience. To be eligible to serve on the Supreme Court, an appointee must either 1) be or have been a judge of a superior court of a province or 2) have been a barrister or advocate with at least 10 years standing at the bar of a province.

Secondly, the Act stipulates that at least three of the judges on the Court must be appointed from Quebec, be it from the province's Court of Appeal, Superior Court, or the group of advocates from that province. Therefore, if a retirement from the Court left only two Quebec judges, then the Prime Minister would be required to appoint someone from Quebec to bring the number back up to three. This rule is commonly justified on the basis that Quebec uses a civil law instead of common law system (as the rest of the country does), and that the Supreme Court needs to have judges familiar with the civil law system in order to properly hear appeals from Quebec.

Finally, it is convention, but not mandatory, that the remaining six positions on the Supreme Court are divided in the following manner: three from Ontario, two from Western Canada, and one from Atlantic Canada.

Review by Advisory Committee

In recent years, the appointment process has been modified somewhat to allow greater parliamentary, provincial/territorial, and public consultation. In 2004, Liberal Prime Minister Paul Martin announced that nominees to the Supreme Court would be reviewed by a special parliamentary committee, that would report their findings to Parliament. This led to the establishment of an ad hoc parliamentary committee, which reviewed the 2004 nominations of justices Rosalie Abella and Louise Charron.

Subsequently, a formal Advisory Committee on Supreme Court appointments was announced, which is formed each time a vacancy on the Court occurs. The Committee's basic structure and its review process are as follows:

The Committee is to include a Member of Parliament from each recognized political party in the House of Commons, a retired judge from the region where the vacancy arises, a representative of the Attorney General from the home province of the nominee, a representative of the law society from the nominee's home province, and two prominent Canadians who are neither lawyers nor judges.

The Committee is to be presented with a list of seven candidates, given to them by the federal Minister of Justice. During its review, the Committee will shortlist three candidates from which the Prime Minister then chooses the appointment.

Originally, the Committee was prohibited from directly questioning the candidates during its review. Instead, the Minister of Justice would appear before the Committee and answer questions on the candidates' behalfs. In 2006, however, Conservative Prime Minister Stephen Harper signaled that future Committees may have greater access to the candidates when he allowed an ad hoc parliamentary committee to directly question the candidacy of Justice Marshall Rothstein prior to his appointment. Rothstein was one of three candidates shortlisted by a previous advisory committee convened by the outgoing Liberal government.

It is important to note, however, that while the use of advisory committees does allow for greater consultation, it does not fundamentally alter the appointment process. The Committee must work from a list of seven candidates submitted to them by the Minister of Justice (usually in consultation with the Prime Minister). Moreover, it is the Prime Minister who chooses the final nominee from the Committee's short list. Neither the Committee nor Parliament has the power to block the Prime Minister's final decision.

Supreme Court of Canada Appointments in Comparison

How does Canada's process compare to other countries?

United States of America

The power to appoint judges to the US Supreme Court, as in Canada, is exercised by the executive branch of government; specifically, by the President of the United States. Unlike Canada, however, presidential appointments to the US Supreme Court must first be confirmed by the US Senate, which is part of the legislative branch of government. In other words, the Senate has the power to reject or block the appointment. Moreover, the confirmation proceedings usually involve a lengthy review process in which the Senate Judiciary Committee is permitted to directly question the President's nominee.

Also, there are no special rules for the President to follow in choosing a nominee. The President may appoint any lawyer for whom Senatorial confirmation can be obtained. This differs from the Canadian process, in which the Prime Minister must meet certain eligibility and representation requirements when selecting a nominee to the Canadian Supreme Court.

Republic of France

As with Canada and the United States, the power to make appointments to the nation's highest court, the Court de Cassation, resides within the executive branch of government; specifically, the French President. However, unlike Canada and the United States, an independent body oversees the appointment process. This body is referred to as the Conseil Superieur de la Magistrature, which is tasked with reviewing and interviewing potential Court de Cassation appointees, and then making a recommendation to the French President. The purpose of the Conseil Superieur de la Magistrature is to ensure judicial independence and quality control in the appointment of judges to the nation's courts.

Australia

The appointment process for Australia's top court, the High Court of Australia, is very similar to Canada's. The power to make such appointments resides with Governor-General in Council (an equivalent to Canada's Governor General). In practice, however, appointments are made by the Australian Prime Minister in consultation with the Cabinet; in particular, Australia's Attorney General. Since 1979, the federal Attorney General has been required to consult with state and territorial Attorneys General before making a selection. State and territorial participation, however, is only consultative; they have no power to block federal appointments. There are very few requirements for becoming a judge on the High Court, other than the fact that a candidate must be under the mandatory retirement age of 70, have been a judge on a federal, state, or territorial court, or been a practitioner for at least five years, either with the High Court itself or with a state or territorial Supreme Court.

Debates Concerning the Appointment Process

Should the appointment process be reformed?

Supreme Court in the Democratic Context

An important argument in favour of reforming the appointment process centres on the power of the Supreme Court and the minimal level of democratic participation in the selection of its judges. As the final interpreter of the Canadian Constitution, the Supreme Court has extensive powers in defining the relationships between different levels of government and between citizens and the state. Moreover, Supreme Court judges are appointed solely by the Prime Minister, without any requirement for consultation with Parliament and/or citizens. While the Prime Minister him/herself is an indirectly elected official, some have argued that greater democratic participation is required to ensure that appointments reflect public sentiment as opposed to simply the desires of the Prime Minister or the governing political party. This would involve a stronger role for Parliament in the appointment process, with the power not only to review nominees, but also to block appointments that fail to reflect general public sentiments.

Supreme Court in the Federal Context

Another argument in favour of reform centres on Canadian federalism and the need for greater provincial and territorial participation in the selection of judges. As stated above, the Supreme Court is the final interpreter of the nation's constitutional principles of federalism, and, as such, has a significant impact on the relationship between different levels of government. Some have thus argued that the provinces and territories should have a greater say in the appointment process, as opposed to the federal government making appointments alone. This would involve, at the minimum, consultations with the provinces and territories when filling court vacancies. Stronger reforms would include the creation of a formal process in which provinces and territories could review and even block federal appointments to the Supreme Court.

Supreme Court and Judicial Independence

There are, however, important arguments against "politicizing" Supreme Court appointments, be it either through greater participation by Parliament or by the provinces and territories. A common concern is the protection of judicial independence, or the doctrine that the Supreme Court should be impartial, and that its decisions should not be influenced by the other branches of government or by general public sentiment. This has important implications for the appointment process. On the one hand, the government may attempt to control the Supreme Court by appointing judges that agree with its politics, philosophy, or ideology. This is one of the concerns with the Prime Minister having the ability to appoint judges unilaterally without any checks and balances.

However, making the selection process overly political may not protect judicial independence to any greater extent. The selection of Supreme Court justices in the United States, for example, involves a comprehensive review by the US Senate. This review acts as a check on the President in his/her power to appoint US Supreme Court justices. Nevertheless, the selection process continues to be based, at least in part, on partisan politics, with judges being confirmed or blocked due to perceptions about their personal values and political allegiances, as opposed to their judicial experience and credentials.